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Hughes v. Ancestry.Com

Court of Appeals of Missouri, Western District, Third Division

May 28, 2019

T. PARSLEY HUGHES, ET AL., Respondents,
v.
ANCESTRY.COM, ET AL., Appellants.

          APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE HONORABLE SANDRA MIDKIFF, JUDGE

          Before: Thomas H. Newton, Presiding Judge, Anthony Rex Gabbert, Judge and Edward R. Ardini, Jr., Judge

          EDWARD R. ARDINI, JR., JUDGE

         Tina Parsley Hughes and Jose Cordada[1] ("Plaintiffs") filed suit in the Circuit Court of Jackson County against Ancestry.com Inc. and Ancestry.com DNA LLC (collectively, "Ancestry"), alleging that Ancestry released their private health information to third parties without their expressed permission. Ancestry filed a Motion to Compel Arbitration and Stay Litigation, which was denied by the trial court. Ancestry appeals from that denial. We reverse and remand with instructions.

         I. Factual and Procedural Background

         Ancestry is a Utah company doing business nationwide and internationally. Ancestry sells genealogy and DNA products and services, including through operation of the website Ancestry.com. As part of its services, Ancestry offers its customers the opportunity to have their DNA tested to discover their ethnicity. Plaintiffs purchased DNA-testing kits from Ancestry and created Ancestry.com accounts.[2]

         In order to create their respective accounts, Plaintiffs entered their full names and email addresses and created a password on a webpage. This webpage contained the following message:

By clicking "Continue" below, you agree to the Ancestry Terms and Conditions and Privacy Statement and agree Ancestry may contact you via email about their products and services, such as family tree hints and updates and promotional offers and events [ ] that help you unlock your past to inspire your future. You can unsubscribe or customize your email settings at any time.

         Within this paragraph, the Terms and Conditions and Privacy Statement were visibly hyperlinked to send users to those documents. A "Continue" button immediately followed this disclaimer. Plaintiffs clicked "Continue" to create their accounts.

         Plaintiffs filed their Class Action Petition, alleging that Ancestry "released [Plaintiffs'] and the members of the Class' private health information to unknown persons or entities without expressed permission to do so from [Plaintiffs] or members of the Class."[3] Ancestry filed a Motion to Compel Arbitration and Stay Litigation, arguing that the "Dispute Resolution" section of the Terms and Conditions agreed to by Plaintiffs included an agreement to arbitrate all disputes[4] subject to three exceptions:

If [the customer's] dispute is not resolved within 30 days after contacting [Ancestry], then [the customer] and Ancestry agree that we will resolve it through final and binding arbitration, with the following three exceptions:
1.[The customer] may assert [his or her] dispute, if it qualifies, in small claims court.
2.Both [the customer] and Ancestry may bring a suit in court in the state of Utah only for a claim of infringement or other misuse of intellectual property rights. In this case, we both waive any right to a jury trial.
3.If it qualifies, [the customer] may bring a claim to the attention of a relevant federal, state, or local agency that may seek relief against [Ancestry] ...

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